United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S
MOTION TO DISMISS
N. Parrish United States District Court Judge.
Judge Jill N. Parrish This matter comes before the court on a
motion to dismiss the information filed by defendant Douglas
Omar Doblado-Cabrera on March 20, 2019. (ECF No. 18). The
government responded in opposition on April 3, 2019 (ECF No.
22), and Mr. Doblado-Cabrera filed a reply on April 18, 2019
(ECF No. 26). For the reasons below, the motion to dismiss is
Doblado-Cabrera was first encountered by immigration
officials at the Denver City jail on June 5, 2009. After
admitting that he was a native and citizen of Honduras, and
that he had entered the United States without inspection, he
was taken into custody by Immigration and Customs Enforcement
(“ICE”) on June 22, 2009. That same day he was
personally served with a Notice to Appear (“NTA”)
that charged him with being removable from the country. The
NTA ordered him to appear before an immigration judge
(“IJ”) at the custodial facility “on a date
to be set at a time to be set to show why [he] should not be
removed from the United States.” But after being served
with the NTA, Mr. Dobaldo-Cabrera executed a Stipulated
Request for Order by which he waived his right to that
hearing and admitted that he was removable as alleged by the
NTA. On July 30, 2009, he was deported to Honduras. Since his
initial removal, Mr. Doblado-Cabrera has re-entered the
United States unlawfully three times, again being deported in
2012, 2013, and 2014.
18, 2017, ICE discovered that Mr. Doblado-Cabrera had yet
again entered the United States after he was arrested in Salt
Lake City, Utah. After his conviction and sentence for
several state felony offenses including possession with
intent to distribute a controlled substance, he was released
into ICE custody on October 16, 2018.
November 2, 2018, the United States filed an information
against Mr. Doblado-Cabrera, charging him with illegal
reentry in violation of 8 U.S.C. §
U.S.C. § 1326(a) imposes criminal penalties “on
any alien who . . . has been . . . deported, or removed . . .
while an order of . . . deportation, or removal is
outstanding, and thereafter enters, attempts to enter, or is
at any time found in, the United States.” While the
government bears the burden to prove each element of §
1326(a), subsection (d) forbids an alien from asserting
challenges to the validity of the predicate removal order
unless the alien can show that “(1) the alien exhausted
any administrative remedies that may have been available to
seek relief against the order; (2) the deportation
proceedings at which the order was issued improperly deprived
the alien of the opportunity for judicial review; and (3) the
entry of the order was fundamentally unfair.” §
this motion, Mr. Doblado-Cabrera undeniably seeks to
challenge the validity of the 2009 removal order, but he
makes no attempt to meet this exacting
standard. Instead, he attempts to do an end-run
around the requirements, arguing that his deportation order
is void in the first instance. The order is void, Mr.
Doblado-Cabrera argues, because the NTA with which he was
served failed to specify the date and time of his removal
hearing and that, as a result, the immigration judge was
without subject-matter jurisdiction to grant his request to
waive that hearing and order his removal. In essence, he
argues that he need not attack the order at all because it is
without legal effect.
Doblado-Cabrera's argument is premised on the Supreme
Court's recent decision in United States v.
Pereira, 138 S.Ct. 2105 (2018), in which the court
addressed the “narrow question” of whether an NTA
“that does not specify the ‘time and place at
which the proceedings will be held,' as required by
§ 1229(a)(1)(G)(i), trigger[s] the stop-time
rule[.]” Id. at 2113. The stop-time rule
relates to the calculation of time for eligibility to seek
discretionary cancellation of removal for aliens who, among
other conditions, have been continuously present in the
United States for 10 or more years. See 8 U.S.C.
§ 1229(b)(1). Under the stop-time rule, the period of
continuous presence is deemed to end “when the alien is
served a notice to appear under section 1229(a) of this
title.” § 1229b(d)(1)(A).
Court held that “based on the plain text of the
statute, it is clear that to trigger the stop-time rule, the
Government must serve a notice to appear that, at the very
least, ‘specif[ies]' the ‘time and place'
of the removal proceedings.” Id. at 2114
(quoting § 1229(a)(1)(G)(i)). Importantly, the stop-time
rule expressly references the statutory definition of an NTA,
which unambiguously requires that such document provide the
alien with the “time and place at which the proceedings
will be held.” § 1229(a)(1)(G)(i). Thus, the court
repeatedly cautioned that “[t]he narrow question in
this case lies at the intersection of those statutory
provisions.” Pereira, 138 S.Ct. at 2110.
Doblado-Cabrera seeks to substantially enlarge the effect of
Pereira, arguing that a removal order entered after
service of an NTA that does not specify the time of the
removal hearing is issued in excess of jurisdiction. In
support of this argument, Mr. Doblado-Cabrera wields
jurisdictional axioms from cases discussing the
subject-matter jurisdiction of federal courts. But while it
is uncontroversial that a federal court's entry of an
order in a case without both Article III and statutory
subject-matter jurisdiction is void ab initio, the
proposition that a notice to appear that fails to include the
time of the hearing vitiates an IJ's subject-matter
jurisdiction over removal proceedings is far from
self-evident. Indeed, Congress has nowhere limited the
subject-matter jurisdiction of immigration courts on the
basis of a charging document. See Karingithi v.
Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019)
(“Section 1229 says nothing about the Immigration
Court's jurisdiction.”). Instead, Mr.
Doblado-Cabrera seeks to import the case law from the Article
III subject-matter jurisdiction context and apply those
principles to a Department of Justice regulation that
declares that “[j]urisdiction vests, and proceedings
before an Immigration Judge commence, when a[n NTA] is filed
with the Immigration Court by the [Department of Homeland
Security].” 8 C.F.R. § 1003.14(a).
even accepting that this regulation operates akin to
subject-matter jurisdiction in the Article III/Title 28
context, the jurisdictional regulation does not refer to the
statutory definition of an NTA (the provision interpreted by
Pereira). Instead the regulation creates a separate
definition of an NTA. See 8 C.F.R. § 1003.15.
The regulatory definition of an NTA does not require that an
NTA specify the date and time of the hearing. Id.
Accordingly, insofar as it is accurate that an NTA must
contain certain elements before an IJ is vested with
subject-matter jurisdiction, the NTA at issue here was not
deficient. Thus, even if an agency-promulgated regulation is
capable of imposing a jurisdictional cliff like that created
by Article III of the Constitution and Title 28 of the United
States Code, the IJ did not exceed its regulatory
jurisdiction here in the first instance.
short, because Mr. Doblado-Cabrera has not made the showings
required by 8 U.S.C. § 1326(d) to collaterally attack
his initial deportation order, and further because he is not